Sexual portrayal of under-18s in ads

Why the need for a change to the codes?

The Children section of the codes defines a child as someone under the age of 16. BCAP and CAP want to send a clear message to advertisers that 16 and 17 year olds are vulnerable and are also intended to be protected. Although the age of sexual consent in the UK is 16, they see this as a separate matter.

How do the rules currently protect under-18s?

There are a number of existing rules in the advertising codes that the advertising regulator, the ASA (Advertising Standards Authority), can try to rely on in order to clamp down on any inappropriate sexualisation of under-18s/children in ads.

Under-18s

• General Compliance section of the advertising codes: Ads must be socially responsible.
• Harm and Offence sections of the advertising codes: Ads must not cause widespread or serious offence.

Under-16s

• Children section of the broadcast code (but not the non-broadcast code): Ads must not portray or represent children in a sexualised way.

What are the proposed rule changes?

A proposed new rule for inclusion in the non-broadcast advertising code and an amended rule for inclusion in the broadcast advertising codes both state that ads “must not portray or represent anyone who is or seems to be, under 18 in a sexualised way”. (There is a carve-out for ads promoting sexual health/welfare.)

Implications

There may have been complaints to the ASA which were not upheld under the current rules, particularly under the broadcast advertising code, which would fall foul of the new proposed rules. One example relates to TV ads for the online clothing retailer PrettyLittleThing.com which were investigated in March 2016 after the ASA received 8 complaints that the ads were socially irresponsible as they sexualised children. The ASA found that the models were in sexually suggestive poses, featured seductive looks and that the clothing worn revealed cleavage and underwear. As the retailer could show that the models were aged 22, there was no breach of the Children section of the broadcast code and children (i.e. under-16s) were not shown in a sexualised way. The ASA also considered whether the ads could fall foul of the general social responsibility rule on the basis that the models “appeared to be under 16” and were portrayed in a sexual manner. Whilst the ASA found the models to be “youthful” and “playful” they didn’t find the ads socially irresponsible as the models did not appear to be aged under 16. The ASA may have been able to reach a different decision on similar non-broadcast ads by relying on the existing rules if the models had seemed to be 16 or 17, but in respect of the broadcast ads, it would mean artificially extending the specific under-16 rule in the Children section currently in place and so their hands may have been tied.

The proposed inclusion of the “seems to be under 18” wording in the new proposed rule reflects similar language already used in the alcohol and gambling sections of the advertising codes which prevent anyone "who is or appears to be aged under 25” from appearing in significant roles in ads promoting alcohol or gambling. The judgment of age is obviously very subjective and unsurprisingly has resulted in differences of opinion between advertisers and the ASA. Consequently, there have been a fair number of ASA challenges and rulings on the age restrictions rules in the alcohol and gambling sectors.

Advertisers, agencies and production companies should ensure that where there is any room for doubt whatsoever over the age of a model portrayed in what may be considered to be a sexualised manner, they ensure that they: (a) obtain documentation and keep copies to verify the age of such models; and (b) obtain a broad range of opinions when casting to ensure they have evidence to back up their assertion that the model looks over 18 (or for the time being, while the current rules are still in place, over 16 for broadcast ads). Many advertisers may err on the side of caution and choose to use significantly older models for sexualised advertising. Another alternative is to use younger models but to ensure that any suggestion of sexual representation whether that be visual, voiceover or musical is removed from the ad.

It’s best practice to take the above steps now; however, it will be even more important if the proposed rules are ultimately enacted.

The full consultation document with details of how to respond is accessible here.